EXHIBIT 10.5
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STOCK PLEDGE AGREEMENT
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This Agreement dated effective January 10, 2003, and granted by PALWEB
CORPORATION, an Oklahoma corporation (the "Pledgor"), to XXXX X. XXXXXX, an
individual (the "Lender").
Concurrently herewith, the Pledgor and Plastic Pallet Production, Inc.,
a Texas corporation ("PPP") (the Pledgor and PPP collectively, the "Borrowers"),
as borrowers, and the Lender, as lender, have entered into a Loan Agreement
dated as of even date herewith (the "Loan Agreement") whereby the Lender will
make a term loan in favor of the Borrowers, to be evidenced by a promissory note
payable to the Lender in the original principal amount of SEVEN MILLION DOLLARS
($7,000,000.00) (the "Note").
As used herein, "UCC" shall mean the Uniform Commercial Code of
Oklahoma, as amended and in effect as of the date hereof, as the context may
require. All other capitalized terms, unless defined herein, shall have the
meanings set forth in the Loan Agreement.
1. Pledge and Security Interest. As security for the due and punctual
payment of all indebtedness of the Borrowers to the Lender arising under the
Note, including all extensions, renewals and changes in the form thereof,
whether for principal, interest, premiums, fees, expenses or otherwise as well
as all future advances or obligations owed to the Lender (including without
limitation) direct, indirect, contingent, joint, several, joint and several or
howsoever created (all such indebtedness and obligations being herein sometimes
referred to as the "Obligations"), together with any and all expenses which may
be incurred by the Lender in collecting any or all of the Obligations or in
enforcing any rights hereunder (all such expenses being hereinafter referred to
as the "Expenses") (the "Obligations" and the "Expenses" shall also be part of
the "Secured Obligations"), the Pledgor hereby pledges, assigns, transfers, sets
over and delivers unto and for the benefit of the Lender the certificates for
the Pledged Securities listed on Exhibit "A," with stock powers covering such
certificates executed in blank, together with shares represented thereby and all
cash securities, dividends or other property at any time and from time to time
received, receivable or otherwise distributed in respect of or in exchange for
any or all of such shares except as allowed by the Loan Agreement (all
collectively referred to herein as the "Pledged Securities").
TO HAVE AND TO HOLD the Pledged Securities, together with all rights,
titles, interests, powers, privileges and preferences appertaining or incidental
thereto, including all cash proceeds received in respect to the Pledged
Securities and all securities delivered in substitution or addition to the
foregoing Pledged Securities, unto the Lender, its successors and assigns,
forever as security for the Secured Obligations subject, however, to the terms,
covenants and conditions hereinafter set forth.
2. Representations and Warranties. The Pledgor represents and warrants
as follows:
(a) The Pledged Securities have been validly authorized and
issued, are fully paid and non-accessible and the Pledgor owns
the same beneficially free and clear of any liens, charges or
encumbrances thereon or affecting the title thereto.
(b) The Pledgor has good right and lawful authority to pledge and
deposit the Pledged Securities as provided herein and warrants
and will preserve and defend all right, title and interest in
and to the Pledged Securities delivered to the Lender
hereunder against the claims of all persons, and will maintain
and preserve the lien hereof as long as this Agreement shall
remain in full force and effect.
3. Appointment of the Lender; Registration in Nominee Name. The Lender
shall have the right and absolute discretion to appoint one or more agents for
the purpose of retaining physical possession of the certificates representing or
evidencing the Pledged Securities, which may be held in the name of the Pledgor,
endorsed or assigned in blank in favor of the Lender. In addition to all other
rights possessed by the Lender, the Lender may, from time to time after the
occurrence of an uncured Event of Default (hereinafter defined) or an event
which with the giving of notice or the lapse of time, or both, would be an Event
of Default, at the Lender's sole discretion and without notice to the Pledgor,
take any or all of the following actions: (a) execute the blank stock power to
authorize transfer of the Pledged Securities; (b) transfer all or any part of
the Pledged Securities into the name of the Lender or its nominee for public or
private sale; (c) take control of any proceeds of any of the Pledged Securities;
and (d) exchange certificates or instruments representing or evidencing the
Pledged Securities for certificates or instruments of smaller or larger
denominations for any purpose consistent with its performance of this Agreement.
4. Voting Rights, Dividends, Replacement of Pledged Securities.
(a) So long as there has not occurred an uncured Event of Default,
the Pledgor shall be entitled to exercise any and all voting
rights and powers relating or pertaining to the Pledged
Securities or any part thereof for any purpose not
inconsistent with the terms of this Agreement.
(b) Unless the Lender expressly consents in writing, and except as
allowed by the Loan Agreement, the Pledgor shall not receive
and not be entitled to retain any and all stock and/or stock
dividends in respect of the Pledged Securities, whether
resulting from a subdivision, combination or reclassification
of the outstanding capital stock of the issuer thereof or
received in exchange for the Pledged Securities, or any part
thereof, or as a result of any merger, consolidation,
acquisition or other exchange of assets to which such issuer
or the Pledgor may be a party or otherwise. Except as allowed
by the Loan Agreement, any and all cash dividends and
distributions and other property received in respect of the
Pledged Securities or in payment of the principal of or in
redemption of or in exchange for any Pledged Securities
(either at maturity, upon call for redemption or otherwise),
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shall become part of the Pledged Securities and delivered to
the Lender or, if received by the Pledgor, shall be held in
trust for the benefit of the Lender and shall forthwith be
delivered to the Lender or its designated agent (accompanied
by proper instruments of assignment and/or stock powers
executed by the Pledgor in accordance with the Lender's
instructions) to be held subject to the terms of this
Agreement.
(c) Upon the occurrence of an uncured Event of Default, at the
option of the Lender, all rights of the Pledgor to exercise
the voting rights and powers which it is entitled to exercise
shall cease and all such rights shall thereupon become vested
in the Lender, which shall have the sole and exclusive right
and authority to exercise such voting and/or consensual rights
and powers. After the occurrence of an Event of Default, the
Lender shall receive and be entitled to retain as collateral
any and all cash dividends and distributions, if any, paid in
respect of the Pledged Securities. Any and all money and other
property paid over to or received by the Lender pursuant to
the provisions of subsection (b) above shall be retained by
the Lender as part of the Pledged Securities and be applied in
accordance with the provisions hereof.
5. Remedies Upon Default. Upon the occurrence of an uncured Event of
Default in the payment of the Secured Obligations when due (whether by
acceleration or otherwise), then, in addition to having the right to exercise
any rights and remedies of a secured party upon default under the Uniform
Commercial Code in effect in the State of Oklahoma, the Lender may, without
being required to give any notice to the Pledgor, apply the cash (if any) then
held by it hereunder to the payment in full of the Secured Obligations and all
other indebtedness referred to in the order and manner specified therein. If
there shall be no such cash or the cash so applied shall be insufficient to pay
all Obligations in full, the Lender may thereupon sell the Pledged Securities,
or any part thereof, and shall apply the proceeds of such sale to the payment in
full of the Secured Obligations and all other indebtedness referred herein in
the order and manner specified therein.
If the Pledgor commences the cure of an event of default which requires
more than fifteen (15) days and the Pledgor has immediately initiated steps
which are reasonably sufficient to cure such event of default and continues to
take reasonable and necessary steps to cure the event of default, the Pledgor
may continue to cure the event of default beyond any cure period so long as the
event of default is capable of being cured within a reasonable time and the
Pledgor continues in good faith to effect a cure.
6. Sale of the Pledged Securities.
(a) Notwithstanding anything to the contrary herein, sale of the
Pledged Securities may be made at any public or private sale,
for cash, upon credit or for future delivery, as the Lender
shall deem appropriate in a commercially reasonable manner.
The Lender shall be authorized at any such sale (to the extent
it, in its sole discretion, deems advisable) to restrict the
prospective bidders or purchasers
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to persons who will represent and agree that they are
purchasing the Pledged Securities then being sold for their
own account for investment and not with a view to the
distribution or resale thereof, and upon consummation of any
such sale the Lender shall have the right to assign, transfer
and deliver to the purchaser or purchasers thereof the Pledged
Securities sold. Each such purchaser at any such sale shall
hold the property purchased absolutely free from any claim or
right on the part of the Pledgor. The Lender shall give the
Pledgor at least fifteen (15) days' written notice of the
Lender's intention to make any such public or private sale.
Such notice, in case of public sale, shall state the time and
place fixed for such sale. Any such public sale shall be held
at such time or times within ordinary business hours and at
such place or places as the Lender may fix in the notice of
such sale. At any such sale, the Pledged Securities, or
portion thereof, to be sold may be sold in one lot as an
entirety or in separate parcels, as the Lender may, in its
sole discretion, determine, and the Lender may bid (which bid
may be, in whole or in part, in the form of cancellation of
indebtedness) for and purchase the whole or any part of the
Pledged Securities. The Lender shall not be obligated to make
any sale of the Pledged Securities if it shall determine not
to do so, regardless of the fact that notice of sale of the
Pledged Securities may have been given. The Lender may, after
notice or publication as required by law, adjourn any public
or private sale, or cause the same to be adjourned from time
to time by announcement at the time and place fixed for sale;
and such sale may, without further notice, be made at the time
and place to which the same was so adjourned. In case sale of
all or any part of the Pledged Securities is made on credit or
for future delivery, the Pledged Securities so sold may be
retained by the Lender until the sale price is paid by the
purchaser or purchasers thereof, but the Lender shall not
incur any liability in case any such purchaser or purchasers
shall fail to take up and pay for the Pledged Securities so
sold and, in the case of any such failure, such Pledged
Securities may be sold again upon like notice. As an
alternative to the Lender's right to sell hereunder or under
the Uniform Commercial Code, the Lender may proceed by suit or
suits at law or in equity to foreclose this Agreement and to
sell the Pledged Securities, or any portion thereof, pursuant
to a judgment or decree of a court or courts of competent
jurisdiction.
(b) The Pledgor understands that compliance with federal or state
securities laws may strictly limit the course of conduct of
the Lender if the Lender were to attempt to dispose of all or
any part of the Pledged Securities and may also limit the
extent to which or the manner in which any subsequent
transferee of the Pledged Securities may dispose of the same.
The Pledgor agrees that in any sale of any of the Pledged
Securities, the Lender is hereby authorized to comply with any
such limitation or restriction in connection with such sale as
it may be advised by counsel is necessary to avoid violation
of applicable law (including, without limitation, compliance
with such procedures as may restrict the number of prospective
bidders and purchasers and/or further restrict such
prospective bidders or purchasers to persons who will
represent and agree that they are purchasing for their own
account for investment and not with a view to the distribution
or resale
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of such Pledged Securities), or in order to obtain any
required approval of the sale or of the purchaser by any
governmental regulatory authority or official, and the Pledgor
further agrees that such compliance shall not result in such
sale being considered or deemed not to have been made in a
commercially reasonable manner, nor shall the Lender be liable
or accountable to the Pledgor for any discount allowed by
reason of the fact that such Pledged Securities are sold in
compliance with any such limitation or restriction.
7. Application of Proceeds of the Pledged Securities Sale. The Lender
shall apply all cash held by it pursuant to Section 4 hereof and the proceeds of
sale of the Pledged Securities as follows:
First: to the payment of the Expenses, including but not limited to the
costs and expenses of such sale or the collection of such cash,
including the out-of-pocket expenses of the Lender and the reasonable
fees and out-of-pocket expenses of counsel employed in connection
therewith, and to the payment of all advances made by the Lender for
the account of the Pledgor hereunder and the payment of all costs and
expenses incurred by the Lender in connection with the administration
and enforcement of this Agreement;
Second: to the payment of the Obligations; and
Third: the balance, if any, of such proceeds shall be paid to the
Pledgor or its assigns, or as a court of competent jurisdiction may
direct.
8. The Lender Appointed Attorney-in-Fact. The Pledgor hereby appoints
the Lender the Pledgor's attorney-in-fact for the purpose of carrying out the
provisions of this Agreement and taking any action and executing any instrument
which the Lender may deem necessary or advisable to accomplish the purposes
hereof, which appointment is irrevocable and coupled with an interest. Without
limiting the generality of the foregoing, the Lender shall, to the extent
permitted herein and except as provided in the Loan Agreement, have the right
and power to receive, endorse and collect all checks and other orders for the
payment of money made payable to the Pledgor representing any dividend, interest
payment or other distribution payable or distributable in respect of the Pledged
Securities or any part thereof and to give full discharge for the same.
9. Miscellaneous.
(a) No Waiver. No failure on the part of the Lender to exercise,
and no delay in exercising, any right, power or remedy
hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right, power or remedy
by the Lender preclude any other or further exercise thereof
or the exercise of any other right, power or remedy. All
remedies hereunder are cumulative and not exclusive of any
other remedies provided by law. The Lender may extend or renew
the Obligations and grant releases, compromises or indulgences
with respect to the Secured Obligations, any extension or
renewal thereof, any security
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therefor, to any obligor hereunder or thereunder, and no such
action shall impair the Lender's rights hereunder.
(b) Termination. This Agreement shall terminate when the Secured
Obligations have been fully performed and paid, at which time
the Lender shall reassign and redeliver (or cause to be so
reassigned and redelivered) to the Pledgor, without recourse
or warranty and at the expense of the Pledgor against receipt,
such of the Pledged Securities (if any) as shall not have been
sold or otherwise applied by the Lender pursuant to the terms
hereof and which is still held by the Lender hereunder,
together with appropriate instruments of reassignment and
release.
(c) Addresses for Notices, Etc. All notices, requests, demands,
directions and other communications provided for hereunder
shall be in writing (including telegraphic communication) and
mailed, telegraphed or delivered as set out in the Loan
Agreement, or, as to any party, to such other address as such
party shall specify by a notice in writing to the other
parties.
(d) Further Assurances. The Pledgor agrees to do such further
reasonable acts and things, and to execute and deliver such
additional conveyances, assignments, agreements and
instruments as the Lender may at any time request in
connection with the administration or enforcement of this
Agreement (including, without limitation, to aid the Lender in
the sale of all or any part of the Pledged Securities) or
related to the Pledged Securities or any part thereof or in
order better to assure and confirm unto the Lender its rights,
powers and remedies hereunder. The Pledgor hereby consents and
agrees that the issuer of the Pledged Securities, or any
registrar or transfer agent for any of the Pledged Securities,
shall be entitled to accept the provisions hereof as
conclusive evidence of the right of the Lender to affect any
transfer pursuant to Section 2, notwithstanding any other
notice or direction to the contrary heretofore or hereafter
given by the Pledgor or any other person to such issuer or to
any such registrar or transfer agent.
(e) Binding Agreement; Assignment. This Agreement shall be binding
upon and inure to the benefit of the parties hereto, their
respective successors and assigns, except that the Pledgor
shall not be permitted to assign this Agreement or any
interest herein or in the Pledged Securities, or any part
thereof, or otherwise pledge, encumber or grant any option
with respect to the Pledged Securities, or any part thereof,
or any cash or property held by the Lender as Pledged
Securities under this Agreement.
(f) Governing Law; Amendments. This Agreement shall be governed by
the laws of the State of Oklahoma. No provision of this
Agreement may be amended, waived or modified, nor may any of
the Pledged Securities be released, unless specifically
provided for herein, except in writing signed by the Lender.
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(g) Headings. Paragraph headings used herein are for convenience
only and shall not affect the construction of this Agreement.
(h) Jurisdiction; Venue. The Pledgor agrees that the exclusive
jurisdiction to resolve any disputes in law or in equity
arising out of this Agreement shall be in the state courts
sitting in Tulsa County, Oklahoma or federal courts sitting in
the Northern District of Oklahoma, and the Pledgor submits to
the jurisdiction of the such courts, waiving all obligations
to venue.
(i) Counterparts. This Agreement may be executed in counterpart
(or by facsimile signature with the original signature page to
be delivered thereafter) and each counterpart shall constitute
an original as if each signature is contained on a single
document.
10. Definitions. "Event of Default" shall include but not be limited to
any event or failure of the Borrowers to comply with any of the terms,
covenants, agreements or obligations contained in this Agreement, the Loan
Agreement or the Note or any other Loan Document (as defined in the Loan
Agreement).
IN WITNESS WHEREOF, this Agreement is executed as of the date first
above written.
PALWEB CORPORATION, an Oklahoma
corporation
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: President
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"Pledgor"
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EXHIBIT A
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(Pledged Securities)
2,000,000 shares of common stock of Plastic Pallet Production, Inc.,
represented by Certificate No. 2 issued to PalWeb Corporation.
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